It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5

from the oops dept

I actually don't think that Disney's trademark opposition to Deadmau5's attempt to trademark his mouse-shaped helmet thing is that crazy. Disney hasn't gone after Deadmau5/Joel Zimmerman all these years for using it. They're just saying "hey, maybe he shouldn't have a registered trademark on that." And they may have a point. Yes, the designs are different, and no, there isn't likely to be much confusion between Deadmau5 and Mickey, but why is Deadmau5 seeking to get a registered trademark on this in the first place?

That said, if notorious copyright maximalists Disney were going to pick an intellectual property fight with someone, it would probably make sense to make sure their own mouse house is in order, no? Apparently, it's not, because Deadmau5 has discovered that... Disney (yes, I'll repeat that: Disney) has uploaded some of his music on its website without permission. The music was on a "re-micks" (ha ha, get it?) page on Disney's website that has since been taken down -- but not before Deadmau5's lawyers sent a takedown letter over it. The letter also, amusingly, makes a trademark claim, though frankly the trademark claim is quite weak. Deadmau5's lawyer is basically claiming trademark infringement over the video as well. That almost certainly wouldn't fly in court.

I tend to not be a fan of takedowns in general, but it's pretty clear that this is basically just being done to call out Disney's hypocrisy here. Not that I expect the message to get through. Still it's surprising that such a copyright maximalist company would be posting videos like that...

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While this may very well be a case of the legal teams/Rightsholders (does deadmau5 own his own songs?) not knowing the left hand from the right, I find your logic extremely amusing...

Namely, that an alleged infringer deserves the benefit of the doubt because they've kept their video up, while the legal team sending takedowns is probably in the wrong for the same reason.

I didn't really explain my reasoning, but I'm happy to do so now. Disney is a sophisticated rightholder, so I find it hard to believe that it would use the song without permission. And if it did discover such an infringement, I believe it would respond quickly--especially considering its opposition to Zimmerman's registration and the publicity involved.

That said, the lawyer's letter leaves a lot of wiggle room and is quite unclear. He mentions that Zimmerman granted rights in the Composition to EMI. And he only claims that Zimmerman’s rights in the Master have been violated. So presumably, whatever rights in the Composition Zimmerman granted to EMI are the only rights in the Composition that he thinks are being violated. Yet, he also says Zimmerman owns the "copyright and/or exclusive rights" in the Composition. From this I deduce that, while Zimmerman may own some exclusive rights in the Composition, he clearly doesn’t own the rights at issue here since there’s no claim that Disney is violating them.

As for the Master, he claims that Zimmerman’s rights are being violated, but then he also says that Zimmerman granted “certain rights thereto” to Virgin and Ultra that possibly are also being infringed. Which is it? Unless they’re joint owners, I don’t think this makes sense. He notes that "Zimmerman is unaware of any license(s) between Disney and EMI, Virgin, and/or Ultra" granting Disney the right to use the Composition or the Master. So he doesn't even know if Disney has a license. Perhaps he should have checked on whether Disney had a license before sending the letter.

So basically it claims infringement, but then admits that maybe other parties who hold some unspecified rights might have granted a license. Combine this with the sophistication of Disney, both to gain the proper rights ahead of time and to timely respond to proper takedown notices, and I arrive at my conclusion “that maybe they have a license.” Make sense?

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"Disney is Disney! OBVIOUSLY they could do no wrong!"

Fantastic reasoning.

That wasn't my reasoning. Of course Disney can do wrong. Maybe they're wrong here. I just think that Disney leaving it up after being put on notice shows that maybe the mistake is Zimmerman's. After all, Zimmerman's lawyer admits that Disney may have a license. Why Zimmerman wouldn't ask the other parties that have the ability to license the work whether they did so is beyond me. I'm not sure where you get the notion that I think Disney is incapable of mistakes. Everybody makes mistakes. Me, you, Disney, Zimmerman, everybody.

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Your reasoning is pretty good. It's actually a case where the claim of copyright by the dead rodent may in fact by actionable, if he does not in fact control ALL of the rights. It could be knowingly making a false claim.

Disney is capable of mistakes, but you have to think they have plenty of lawyers who vet everything that ends up in their productions, on their websites, and so on. Certainly they could have made an error, but it seems equally likely that the dead rodent just isn't sure WHO has the rights to his work, and who they may have assigned them to after.

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Your post helps explain why IP laws are so confusing. When not even those making takedown requests are expected to know who holds the copy protection to what and who has permission to do what how can Youtube and a third party provider be expected to reasonably distinguish these things?

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"After all, Zimmerman's lawyer admits that Disney may have a license."

and this is another problem with IP laws. There is almost no punishment for false takedown requests (and where punishment exists it's hardly even enforced because it's so low it's not even worth pursuing) and so everyone has very little incentive to do their homework before making such requests. The laws makes it such that the best strategy is to shoot first and ask questions later.

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Yes, large sophisticated companies made up of thousands of individual employees don't make mistakes.

That's a strange response. Of course Disney makes mistakes. Everybody makes mistakes. The video could be infringing, and it could be a mistake on Disney's part. I simply said that leaving up the video after being put on notice "leads me to believe that maybe they have a license." If it were infringing, I believe it's likely that Disney would take it down. And if Disney thinks it's noninfringing, I believe it's likely it would leave it up.

There's 20 of them, each with a different song. These are included as bonus features on DVDs, and they play them on the Disney channel between shows as filler. I find it hard to believe that Disney wouldn't obtain the proper licenses, but it's certainly possible.

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Disney is a sophisticated rightholder, so I find it hard to believe that it would use the song without permission.

Your entire post rests on the idea that a "sophisticated rightholder" would not infringe on copyright. Of course they would. They would infringe upon whatever copyright that they can, if the rights holder is someone who can not afford an expensive lawyer. If it isn't, then they can infringe however they like, because the artist can't afford to sue them.

As for the Master, he claims that Zimmerman’s rights are being violated, but then he also says that Zimmerman granted “certain rights thereto” to Virgin and Ultra that possibly are also being infringed. Which is it?

You're being disingenuous. Let's read the quote in context:

Moreover, Zimmerman was an exclusive songwriter of EMI Music Publishing Limited ("EMI") when he composed "Ghosts 'n' Stuff" (the "Composition") and granted certain exclusive rights in and to the Composition to EMI. With respect to the Master, certain rights thereto have been granted to Virgin Records Limited ("Virgin") and Ultra Records, LLC ("Ultra"). Zimmerman is unaware of any license(s) between Disney and EMI, Virgin, and/or Ultra granting Disney the right to synchronize the Composition with the Infringing Video or to exploit the Master in any manner or media. If Disney has any such licenses, please forward them to my attention immediately. Accordingly, hnot only is Disney violating the rights of Zimmerman, but it is also infringing upon the rights of EMI Music Publishing Limited, Virgin Records, Limited, and Ultra Records, LLC.

Clearly, Disney does not have any sort of licence. He only brings up the other parties to make it clear to the Court that Disney is infringing upon the rights of multiple rights holders.

The request from Disney is something that they do not believe Disney can provide, because they clearly do not believe Disney has any kind of license with any of those rights holders; it's simply boilerplate language.

So basically it claims infringement, but then admits that maybe other parties who hold some unspecified rights might have granted a license.

No, it claims infringement of the plaintiffs' rights, then accuses Disney of infringing upon the rights of other rights holders. It "admits" nothing.

Incidentally, it's pretty telling that you take the side of Disney in a copyright fight against an actual artist - but you always take the side of the rights holders in any case where the rights holder isn't an artist, but is a major media company instead. It demonstrates pretty clearly where your loyalties lie.

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Hypocrisy, much?

> Was it taken down? Looks up to me

Wait a sec, this is the behavior we expect of a company backing "notice and staydown"? Given what they expect of others, even if they have a valid license, one would think they'd have the courtesy to at least take it down for appearances sake, right?

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let's multiply that by the statutory infringement damages that the RIAAs/MPAA/other aasses usually ask for these days, USD 150k per unauthorized performance/distribution

No, statutory damages are calculated per work, not per infringement. One song would top out at $150,000, whether the copyright was infringed once or a million times. But two songs would top out at $300,000.

Costs

Well, lets look at this the way the riaa/mpaa does then.

29 thousand people saw the video and heard the song..for FREE. Thats 29,000 people that didn't buy the mp3! The Mp3 can be bought from deadmau5 on his site for $1.30, so I'm going to assume the entire 1.30 goes to him.

Disney......stole..... $37,700 dollars...right out of Deadmau5's pocket...because CLEARLY everyone that saw the video DIDN'T BUY THE SONG.....BECAUSE THEY HEARD IT FOR FREE!!!!!!!!!

NOW...I'm being sarcastic, obviously.

I'm sure that there are people that were exposed to Deadmau5 because of the video, and I'm willing to bet that he managed to sell some more songs and albums, because people that were never exposed to the music before heard it....but if I were him, I'd try and go after them for the extra $37,700.....just because I could....and tell Disney that their OWN STUPID LOGIC THAT EVERY EXPOSURE TO THE MEDIA WITHOUT A CORRESPONDING PURCHASE IS "PIRACY" is the reason why.

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"...but why is Deadmau5 seeking to get a registered trademark on this in the first place? "

Merchandising. Concert shirts, etc with his trademark on it. So he can go after others selling them without his permission. Its part of his brand he's worked pretty hard to build and now wants to protect.

Frankly I am surprised he didn't register it a lot sooner. He really should have.

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No, no it really isn't

It's not surprising at all actually, as has been shown several times, those that push for tougher and harsher punishments for copyright infringement, those that believe the law needs to be even stronger, always seem to think that those same laws don't apply to them.

As the AC above notes, 'laws are for the little people', so it's not surprising that a huge company like Disney might ignore or 'forget' to follow the same laws they push for expanding so much, they bought the laws, it's only natural they'd feel free to ignore them.

When I infringe Disney's IP I am a heartless monster literally stealing bread from their childrens' mouths. When Disney infringes your IP they're probably just doing you a favor, and you should count yourself lucky that they arent trying to charge you for it.

First off, the dead rodent dude needs to learn what DMCA is. All the rest of his lawyer's letter is totally worthless and meaningless. In fact, I would even go as far as to say "attention whoring" is at the core of this.

I also wouldn't be shocked to find out that Disney has either license to use the video already, or is playing it in the same manner that a video channel might play a music video. The dead rodent may find that he is stepping on his own tail, essentially claiming that the video wasn't release for broadcast or online use (he should sue Google and Youtube too!)

Disney on the other hand should know better. When they started legal process against the guy, they should have sent out an all points bulletin to make sure none of his material was associated with Disney in any manner.

For the dead rodent, all I can say is that three stories in a week makes me think he is attention whoring, having found that the anti-copyright crew are easy to manipulate for wide spread press.

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Go back and re-read it. It's a light DMCA notice with heavy doses of trademark infringement and other issues. A DMCA can be written in about 1 short paragraph, it doesn't take two pages. The other claims are spurious and meaningless under the DMCA.

Moreover, the dead rodent seems to think that people who do broadcast or distribute his songs or music should specifically not mention his name.

All this of course assuming that Disney did not obtain the rights to use the music in some manner already. Would you say loser pays if the dead rodent is proven wrong?

If it's a valid DMCA, then good on him for making a notice. But the current "play to the anti-copyright types" attention whoring is way too obvious.

I have no idea who this guy is but I love that he called them on their bullshit. Actually the video could be possibly be derivative enough to be covered by fair use but we all know Disney doesn't believe in fair use by anyone but them. Snow White was written in the early 1800's and is public domain. Don't you dare make a Snow White character that even remotely resembles theirs or you will be sued. This is only to show what blatant hypocrites they are. Otherwise I really don't think he would have ever given two shits about this video with his music being used by Disney.

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"A cautious legal department may take it down pending review. They may feel it's not worth the risk to leave it up, in case things don't work out."

Which shows the problems with IP laws once again. It creates little disincentive to file false takedown requests and lots of incentive to take a shoot first ask questions later approach so that legitimate content could be taken down and those that posted it would have to go through a complicated process to get their content back up. If you support something like this it's despicable.

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Nope - after all, it's "just an error." That's what you've said before when other copyright agents have been caught under DMCA. The law needs to be applied equally and fairly, or else it's not a law; merely guidelines.

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Of course, if it turns out that Disney does have a license, will you call him out for his false DMCA style claims?

He did send real takedown notices. I saw a copy of the video on YouTube that had the frowny-face-we're-sorry thing, citing Deadmau5 as the sender. And there's a few search results on Google that were also taken down.

Of course, if Disney does have a license, I expect a post from Mike blaming Deadmau5 for killing innovation and free speech. Oh wait, no I don't.

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Or perhaps a post from Mike explaining how this shows that bogus takedowns keep going unpunished and stricter punishments need to be enacted to give those on the receiving end of such takedowns more incentive to pursue their rewards. Mike can explain how Deadmau5 is demonstrating and even (perhaps intentionally) flaunting the broken nature of our laws by filing bogus takedowns and going virtually unpunished.